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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 M.A.D.R., Case No. 2:18-cv-07506-SHK 12 Plaintiff, 13 v. OPINION AND ORDER 14 NANCY A. BERRYHILL, Acting 15 Commissioner of Social Security, 16 Defendant. 17

18 Plaintiff M.A.D.R.1 (“Plaintiff”) seeks judicial review of the final decision of 19 the Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying her application for disability insurance 21 benefits (“DIB”), under Title II of the Social Security Act (the “Act”). This 22 Court has jurisdiction under

(g), and, pursuant to 28 U.S.C. 23 § 636(c), the parties have consented to the jurisdiction of the undersigned United 24 States Magistrate Judge. For the reasons stated below, the Commissioner’s 25 decision is REVERSED and this action is REMANDED for further proceedings 26 consistent with this Order. 27 1 I. BACKGROUND 2 Plaintiff filed an application for DIB on January 22, 2015, alleging disability 3 beginning on July 27, 2008. Transcript (“Tr.”) 158-59.2 Following a denial of 4 benefits, Plaintiff requested a hearing before an administrative law judge (“ALJ”) 5 and, on September 5, 2017, ALJ Richard T. Breen determined that Plaintiff was not 6 disabled. Tr. 17-28. Plaintiff sought review of the ALJ’s decision with the Appeals 7 Council, however, review was denied on August 3, 2018. Tr. 1-8. This appeal 8 followed. 9 II. STANDARD OF REVIEW 10 The reviewing court shall affirm the Commissioner’s decision if the decision 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record.

(g); Batson v. Comm’r Soc. 13 Sec. Admin.,

(9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales,

, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler,

(9th Cir. 1986). 20 “‘When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin,

(9th Cir. 2014) (quoting Batson,

1196); see also Thomas v. Barnhart,

(9th Cir. 2002) (“If the 24 ALJ’s credibility finding is supported by substantial evidence in the record, [the 25 Court] may not engage in second-guessing.”) (citation omitted). A reviewing 26

27 2 A certified copy of the Administrative Record was filed on January 31, 2019. Electronic Case 1 court, however, “cannot affirm the decision of an agency on a ground that the 2 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 3

(9th Cir. 2006) (citation omitted). Finally, a court may not 4 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart,

, 5 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 6 harmful normally falls upon the party attacking the agency’s determination.” 7 Shinseki v. Sanders,

(2009). 8 III. DISCUSSION 9 A. Establishing Disability Under The Act 10 To establish whether a claimant is disabled under the Act, it must be shown 11 that: 12 (a) the claimant suffers from a medically determinable physical or 13 mental impairment that can be expected to result in death or that has 14 lasted or can be expected to last for a continuous period of not less than 15 twelve months; and 16 (b) the impairment renders the claimant incapable of performing the 17 work that the claimant previously performed and incapable of 18 performing any other substantial gainful employment that exists in the 19 national economy. 20 Tackett v. Apfel,

(9th Cir. 1999) (citing 42 U.S.C. 21 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 22 Id. 23 The ALJ employs a five-step sequential evaluation process to determine 24 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 25

(1987);

(a). Each step is potentially 26 dispositive and “if a claimant is found to be ‘disabled’ or ‘not-disabled’ at any step 27 in the sequence, there is no need to consider subsequent steps.” Tackett,

one through four, and the Commissioner carries the burden of proof at step five. 2 Tackett,

. 3 The five steps are: 4 Step 1. Is the claimant presently working in a substantially gainful 5 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 6 the meaning of the [] Act and is not entitled to [DIB]. If the claimant is 7 not working in a [SGA], then the claimant’s case cannot be resolved at 8 step one and the evaluation proceeds to step two. See 20 C.F.R. 9 § 404.1520(b). 10 Step 2. Is the claimant’s impairment severe? If not, then the 11 claimant is “not disabled” and is not entitled to [DIB]. If the claimant’s 12 impairment is severe, then the claimant’s case cannot be resolved at 13 step two and the evaluation proceeds to step three. See 20 C.F.R. 14 § 404.1520(c). 15 Step 3. Does the impairment “meet or equal” one of a list of 16 specific impairments described in the regulations? If so, the claimant is 17 “disabled” and therefore entitled to [DIB]. If the claimant’s 18 impairment neither meets nor equals one of the impairments listed in 19 the regulations, then the claimant’s case cannot be resolved at step 20 three and the evaluation proceeds to step four. See 20 C.F.R. 21 § 404.1520(d). 22 Step 4. Is the claimant able to do any work that he or she has 23 done in the past? If so, then the claimant is “not disabled” and is not 24 entitled to [DIB]. If the claimant cannot do any work he or she did in 25 the past, then the claimant’s case cannot be resolved at step four and 26 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 27 § 404.1520(e). 1 Step 5. Is the claimant able to do any other work? If not, then 2 the claimant is “disabled” and therefore entitled to [DIB]. See 20

(f)(1). If the claimant is able to do other work, then 4 the Commissioner must establish that there are a significant number of 5 jobs in the national economy that claimant can do. There are two ways 6 for the Commissioner to meet the burden of showing that there is other 7 work in “significant numbers” in the national economy that claimant 8 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 9 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 10 subpt. P, app. 2. If the Commissioner meets this burden, the claimant 11 is “not disabled” and therefore not entitled to [DIB]. See

404.1520(f), 404.1562. If the Commissioner cannot meet this burden, 13 then the claimant is “disabled” and therefore entitled to [DIB]. See

14

. 15 B. Summary Of ALJ’s Findings 16 The ALJ determined that Plaintiff “last met the insured status requirements 17 of the . . . Act on June 30, 2014.” Tr. 19 (citation omitted). The ALJ then found at 18 step one, that “[Plaintiff] did not engaged in [SGA] during the relevant period from 19 her alleged onset date of July 27, 2008, through her date last insured of June 30, 20 2014 (20 CFR 404.1571 et seq.).”

At step two, the ALJ found that “[t]hrough 21 the date last insured, [Plaintiff] had the following severe impairments: degenerative 22 disc disease of the lumbar spine and obesity (20 CFR 404.1520(c)).”

At step 23 three, the ALJ found that “[t]hrough the date last insured, [Plaintiff] did not have 24 an impairment or combination of impairments that met or medically equaled the 25 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 26 1 (20 CFR 404.1520(d), 404.1525 and 404. 1526).” Tr. 22. 27 In preparation for step four, the ALJ found that through the date last 1 perform medium work as defined in 20 CFR 404.1567(c) including 2 lifting up to 50 pounds occasionally and 25 pounds frequently, and 3 sitting, standing and/or walking up to 6 hours in an 8-hour workday, 4 with the follow restrictions: she can frequently climb ramps and stairs; 5 she can only occasionally climb ladders, ropes, and scaffolds; she can 6 only occasionally stoop, kneel, crouch, and crawl; she can frequently 7 balance; she must avoid work at unprotected heights, around moving 8 mechanical parts, or in humidity and wetness. 9 Tr. 23. The ALJ then found, at step four, that “[t]hrough the date last insured, 10 [Plaintiff] is unable to perform any past relevant work [(“PRW”)] (20 CFR 11 404. 1565).” Tr. 26. 12 In preparation for step five, the ALJ noted that “[Plaintiff] was born on June 13 20, 1961 and was 53 years old, which is defined as an individual closely approaching 14 advanced age, on the date last insured. [Plaintiff] subsequently changed age 15 category to advanced age (20 CFR 404. 1563).” Tr. 26. The ALJ observed that 16 “[Plaintiff] has a limited education and is able to communicate in English (20 CFR 17 404. 1564).” Tr. 27. The ALJ then added that “[t]ransferability of job skills is not 18 an issue in this case because [Plaintiff’s] [PRW] is unskilled (20 CFR 404. 1568).” 19

20 At step five, the ALJ found that “[t]hrough the date last insured, 21 [c]onsidering [Plaintiff’s] age, education, work experience, and [RFC], there were 22 jobs that existed in significant numbers in the national economy that Plaintiff could 23 have performed (20 CFR 404.1569 and 404.1569(a)).”

Specifically, the ALJ 24 found that Plaintiff could perform the “unskilled” occupations of “hand- 25 packager,” as defined in the dictionary of occupational titles (“DOT”) at DOT 26 920.587-018, “dining room attendant (DOT 311.677-018),” and “machine 27 packager (DOT 920.685-078).”

The ALJ based his decision that Plaintiff could 1 administrative hearing, after “determin[ing] that the [VE’s] testimony [wa]s 2 consistent with the information contained in the [DOT].” Tr. 27-28. 3 After finding that through the date last insured, “[Plaintiff] was capable of 4 making a successful adjustment to other work that existed in significant numbers in 5 the national economy,” the ALJ concluded that “[a] finding of ‘not disabled’ 6 is . . . appropriate under the framework of the above-cited rules.” Tr. 28. The 7 ALJ, therefore, found that “[Plaintiff] was not under a disability, as defined in 8 the . . . Act, at any time from July 27, 2008, the alleged onset date, through June 30, 9 2014, the date last insured (20 CFR 404.1520(g)).”

10 C. Issues Presented 11 In this appeal, Plaintiff raises three issues: (1) whether the ALJ properly 12 “formulate[d] Plaintiff’s [RFC]”; (2) whether the ALJ properly found that she 13 “could perform alternative work” at step five; and (3) whether “Plaintiff’s 14 properly credited limitations [were] sufficient to command reversal.” ECF No. 24, 15 Joint Stip. at 4. 16 D. Court’s Consideration Of Plaintiff’s First Issue 17 1. Parties Arguments 18 Plaintiff argues that the ALJ’s RFC finding was not supported by substantial 19 evidence because the ALJ improperly (1) rejected her subjective symptom 20 statements; (2) rejected an August 2010 opinion from her treating physician, Gil 21 Tepper, M.D.; and (3) omitted from the RFC the improperly rejected limitations 22 expressed by her and Dr. Tepper.

. Plaintiff argues that the rejection of Dr. 23 Tepper’s opinion was not harmless because Dr. Tepper opined that Plaintiff’s 24 limitations were consistent with “light work” and because “at the level of ‘light’ 25 work, at age 50, Plaintiff must be found disabled by virtue of the Medical- 26 Vocational guidelines (grids).”

. Plaintiff argues that the improperly 27 rejected evidence should be “established as a matter of law for purposes of analysis 1 because “there are no outstanding issues left to be resolved.”

, 26- 2 27. 3 Defendant responds that the ALJ’s RFC finding was supported by 4 substantial evidence because the ALJ’s assessments of Plaintiff’s statements and 5 Dr. Tepper’s opinion were also supported by substantial evidence.

. 6 With respect to the ALJ’s rejection of Plaintiff’s statements, Defendant argues that 7 “[t]he ALJ first summarized Plaintiff’s statements and testimony regarding her 8 impairments and her associated symptoms and limitations” and “then checked 9 them against the record evidence.”

(citations omitted). Defendant argues 10 that “[t]he evidence since Plaintiff’s alleged onset date, . . . through her date last 11 insured, . . . was simply not consistent with her allegations,” and that “Plaintiff 12 received mostly conservative and mostly effective treatment during the relevant 13 period.”

. With respect to the ALJ’s rejection of Dr. Tepper’s August 14 2010 opinion, Defendant concedes that “the ALJ did not explicitly address it[.]” 15

. However, Defendant argues that “[i]mplicit though the rejection may 16 have been, it was nevertheless supported by substantial evidence.”

Defendant 17 argues that Dr. Tepper’s opinion “was inconsistent with the treatment and 18 examination records” and “[b]ecause Dr. Tepper clearly based this opinion on 19 Plaintiff’s dubious subjective complaints, the ALJ’s implicit rejection of the 20 opinion was proper.”

. 21 The Court begins by discussing the ALJ’s treatment of Dr. Tepper’s August 22 2010 opinion. 23 2. Dr. Tepper’s August 2010 Opinion 24 On August 24, 2010, Dr. Tepper prepared a “Primary Treating Physician’s 25 Permanent and Stationary Report[,]” wherein he discussed his treatment of 26 Plaintiff, Plaintiff’s other relevant medical history, Plaintiff’s subjective 27 complaints, Plaintiff’s ADL’s, examination findings, diagnoses, his opinions on 1 404. Dr. Tepper found, in pertinent part, that “[w]ith regard to [Plaintiff’s] 2 lumbar spine and left hip, [Plaintiff] is precluded from the performance of 3 prolonged sitting/standing/walking, repetitive bending, stooping, squatting, 4 twisting, and lifting greater than 15 pounds.” Tr. 401. Dr. Tepper opined that 5 “[a]t this time, . . . [Plaintiff] has reached Maximal Medical Improvement from 6 the effects of the industrial injury.” Tr. 400. 7 In support of the limitations he assessed, Dr. Tepper noted his diagnoses of 8 Plaintiff, including: 9  “lumbar spine herniated nucleus pulposus, L4-5, L5-S1, per MRI dated 10 9/23/08 and 7/13/10”; 11  “lumbar spine facet hypertrophy, L4-L5, per MRI dated 9/23/08 and 12 7/13/10”; 13  “bilateral lower extremity radicular pain”; 14  “left hip musculoligamentous sprain/strain”; 15  “anxiety/depression, secondary to industrial injury/pain”; 16  “[(“gastroesophageal reflux disease”) GERD], secondary to 17 medication/pain”; 18  “insomnia, secondary to industrial injury/pain.” 19

(capitalization normalized). 20 Dr. Tepper also noted that the “objective factors of disability[,]” with 21 respect to Plaintiff’s lumbar spine, included: reduced range of motion, abnormal 22 physical exam, decreased muscle strength, and positive MRIs, dated September 23, 23 2008, and July 13, 2010.

(capitalization normalized. Dr. Tepper added that the 24 “objective factors of disability[,]” with respect to Plaintiff’s left hip, included: 25 reduced range of motion and abnormal physical exam. Tr. 401. 26 3. ALJ’s Consideration Of Dr. Tepper’s Opinion 27 The ALJ observed that, following a workplace injury in 2008 that resulted in 1 treatment” with Dr. Tepper from 2008, “throughout 2009[,] and early 2010.” Tr. 2 24 (citing Tr. 356-81, 384). The ALJ also observed that “[a]t an examination with 3 Dr. Tepper in August 2010, [Plaintiff] exhibit[ed] decreased range of motion of the 4 lumbar spine, diffuse tenderness to palpation along the lumbar paravertebral 5 musculature, hypoesthesia along the L5 and S1 dermatomes, and positive straight 6 leg raisings test on the left.” Tr. 25 (citing Tr. 396). 7 The ALJ next “considered the various opinions provided by worker’s 8 compensation physicians, including [Dr.] Tepper, . . . whom opined in 2008 and 9 2009 that [Plaintiff] was ‘temporarily totally disabled’ [(“TTD”)]” and found that 10 “the conclusion by a physician that a claimant is TTD in the context of a workers’ 11 compensation case is not relevant with regard to an application under the . . . Act.” 12 Tr. 26. The ALJ explained that the term TTD “is used in workers’ compensation 13 law to indicate that [for] a certain moment or for a certain period in time a worker is 14 unable to return to the job being performed at the time of the injury, with or 15 without modifications to the job requirements.”

The ALJ found that because 16 “[t]his is not the same criteria used to determine disability under the . . . Act[,]” 17 such a finding is “not relevant” here.

The ALJ added that “[t]he objective 18 clinical diagnostic evidence used by the physician to come to that conclusion and 19 included in the physician’s reports has been considered” and “is consistent with a 20 determination that [Plaintiff] could do work within the limitations noted herein.” 21

The ALJ, however, did not consider or discuss Dr. Tepper’s August 2010 22 opinion. 23 4. Standard To Review ALJ’s Analysis Of Medical Opinions 24 There are three types of medical opinions in Social Security cases: those 25 from treating physicians, examining physicians, and non-examining physicians. 26 Valentine v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2009) (citation 27 omitted). “The medical opinion of a claimant’s treating physician is given 1 and laboratory diagnostic techniques and is not inconsistent with the other 2 substantial evidence in [the claimant’s] case record.’” Trevizo v. Berryhill, 871

(9th Cir. 2017) (quoting

(c)(2)). “When a 4 treating physician’s opinion is not controlling, it is weighted according to factors 5 such as the length of the treatment relationship and the frequency of examination, 6 the nature and extent of the treatment relationship, supportability, consistency 7 with the record, and specialization of the physician.”

(citing 20 C.F.R. 8 § 404.1527(c)(2)–(6)). 9 “‘To reject [the] uncontradicted opinion of a treating or examining doctor, 10 an ALJ must state clear and convincing reasons that are supported by substantial 11 evidence.’” Id. (quoting Ryan v. Comm’r Soc. Sec. Admin.,

, 1198 12 (9th Cir. 2008)). “This is not an easy requirement to meet: ‘the clear and 13 convincing standard is the most demanding required in Social Security cases.’” 14 Garrison v. Colvin,

(9th Cir. 2014) (quoting Moore v. Comm’r 15 Soc. Sec. Admin.,

(9th Cir. 2002)). 16 “‘If a treating or examining doctor’s opinion is contradicted by another 17 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 18 reasons that are supported by substantial evidence.’” Trevizo, 871 F.3d at 675 19 (quoting Ryan,

). “This is so because, even when contradicted, a 20 treating or examining physician’s opinion is still owed deference and will often be 21 ‘entitled to the greatest weight . . . even if it does not meet the test for controlling 22 weight.’” Garrison,

(quoting Orn v. Astrue,

, 633 23 (9th Cir. 2007)). “‘The ALJ can meet this burden by setting out a detailed and 24 thorough summary of the facts and conflicting clinical evidence, stating his 25 interpretation thereof, and making findings.’” Trevizo, 871 F.3d at 675 (quoting 26 Magallanes v. Bowen,

(9th Cir. 1989)). 27 / / / 1 5. Standard To Review ALJ’s RFC Finding 2 The RFC is the maximum a claimant can do despite her limitations. 20

. In determining the RFC, the ALJ must consider limitations 4 imposed by all of a claimant’s impairments, even those that are not severe, and 5 evaluate all of the relevant medical and other evidence, including the claimant’s 6 testimony. SSR 96-8p, available at

. The ALJ is responsible for 7 resolving conflicts in the medical testimony and translating the claimant’s 8 impairments into concrete functional limitations in the RFC. Stubbs-Danielson v. 9 Astrue,

(9th Cir. 2008). “An ALJ must propound a 10 hypothetical to a VE that is based on medical assumptions supported by substantial 11 evidence in the record that reflects all the claimant’s limitations.” Osenbrock v. 12 Apfel,

(9th Cir. 2001). 13 6. ALJ’s Decision Is Not Supported By Substantial Evidence 14 Here, as an initial matter, the Court notes that the ALJ considered and 15 discussed the contradictory opinions of other doctors in his unfavorable decision. 16 See e.g., Tr. 26, 401 (ALJ discussing the opinion of M. Sohn, M.D., that Plaintiff 17 could perform “medium work with frequent postural activities[,]” whereas, Dr. 18 Tepper opined that Plaintiff could lift only fifteen pounds, which is consistent with 19 a limitation to light work3). As such, the clear and convincing standard applies 20 here. 21 Here, it is undisputed that the ALJ did not consider or discuss Dr. Tepper’s 22 August 2010 opinion. Although Defendant argues that the ALJ’s implicit rejection 23 of Dr. Tepper’s opinion was proper and provides various explanations as to why 24 Dr. Topper’s treating opinion should be rejected, the Court cannot affirm the 25 ALJ’s decision on Defendant’s post-hoc explanations. See Stout v. Comm’r Soc. 26 3 See SSR 83-10,

, at *5 (light work requires “lifting no more than 20 pounds at a 27 time with frequent lifting or carrying objects weighing up to 10 pounds” and medium work 1 Sec. Admin.,

(9th Cir. 2006) (the Court cannot affirm the 2 ALJ’s decision on grounds not invoked by the Commissioner) (citation omitted). 3 Moreover, Dr. Tepper’s opinion is well supported by objective evidence, including 4 Dr. Tepper’s own clinical diagnoses of Plaintiff, MRI imaging, limitations observed 5 upon examining Plaintiff, and reference to his longitudinal treatment of Plaintiff 6 over a three-year period. Accordingly, the Court finds that the ALJ’s implicit 7 rejection Dr. Tepper’s well-supported August 2010 treating opinion, wherein the 8 ALJ failed to provide any reason for rejecting the opinion, much less clear and 9 convincing reasons, was not supported by substantial evidence. 10 Additionally, because Dr. Tepper opined that Plaintiff had greater 11 limitations than the ALJ included in Plaintiff’s RFC, and because the ALJ failed to 12 consider or discuss Dr. Tepper’s opinion, the Court finds that the ALJ’s RFC 13 assessment was not supported by substantial evidence in the record. See Trevizo, 14 871 F.3d at 675. As such, because the RFC and, by extension, the dispositive 15 hypothetical question posed to the VE, was not supported by substantial evidence, 16 the Court finds that the ALJ’s step-five finding, which relied upon the VE’s 17 testimony, was similarly not supported by substantial evidence. Thus, the Court 18 finds that remand is appropriate here. 19 However, because Dr. Tepper’s opinion is contradicted by other medical 20 opinions in the record, the Court cannot conclude that further administrative 21 hearings would serve no useful purpose here so that the ALJ may reassess 22 Plaintiff’s limitations and RFC in light of all the evidence in the record, including 23 Dr. Tepper’s August 2010 opinion. As such the Court finds that remand for 24 further proceedings is appropriate here so that the ALJ may reconsider Plaintiff’s 25 RFC in light of Dr. Tepper’s August 2010 opinion. Finally, because the Court 26 finds that remand is appropriate for the aforementioned reason, it does not address 27 Plaintiff’s remaining assignments of error. 1 IV. CONCLUSION 2 Because the Commissioner’s decision is not supported by substantial 3 | evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 4 | REVERSED and this case is REMANDED for further administrative proceedings 5 | under sentence four of

(g). See Garrison,

6 | (holding that under sentence four of

(g), “[t]he court shall have 7 | power to enter... judgment affirming, modifying, or reversing the decision of the 8 | Commissioner ..., with or without remanding the cause for a rehearing.’’) 9 | (citation and internal quotation marks omitted). 10 | DATED: 1/31/2020 Ray te 12 HONORABLE SHASHI H. KEWALRAMANI 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28